NSA Ends One Particular Type of Domestic Email Data Collection

No more gathering communications from Americans that were 'about' a foreign target.

Let's hear it for a little bit more communication privacy for Americans! Charlie Savage at The New York Times is reporting via sources that the National Security Agency (NSA) is ending a particular type of intrusive surveillance that scanned the contents of Americans' emails for key words.

Specifically, the NSA monitors messages for references of foreign individuals under their surveillance, even when such communications originate here domestically from Americans. This is often referred to in shorthand as "about" searches, meaning they're looking for messages that are "about" people they're watching, not just from or to these people. The NSA argues that this is legal as part of its job to gather intelligence about potential foreign threats. But this happens without warrants and and the implication here is at the very least the scanning of the contents of Americans' communications without evidence of wrongdoing.

Furthermore it appears as though NSA employees were not able to confine themselves to collecting just the communications that referenced the foreign target. This technical issue had been raised before in the Foreign Intelligence Surveillance Court (FISC): Through this process, the NSA was collecting and potentially getting access to all sorts of communications it wasn't supposed to be looking at, even if one were to accept that the "about" searches were legal. From Savage:

The problem stemmed from certain bundled messages that internet companies sometimes packaged together and transmitted as a unit. If even one of them had a foreign target's email address somewhere in it, all were sucked in.

After the N.S.A. brought that issue to the court's attention in 2011, a judge ruled that it violated the Fourth Amendment, which bars unreasonable searches. The agency then proposed putting the bundled messages in a special repository to which analysts, searching through intercepts to write intelligence reports, would generally not have access. The court permitted that type of collection to continue with that restriction.

But last year, officials said, the N.S.A. discovered that analysts were querying the bundled messages in a way that did not comply with those rules. The agency brought the matter to the court's attention, resulting in a delay in reauthorizing the broader warrantless surveillance program until the agency proposed ceasing this collection practice.

And now it looks like, at least for the time being, they're stopping these searches. This is potentially a significant change because of what's called "backdoor" searches. Once the NSA collects information from this warrantless surveillance, it can be used by other federal agencies to search for information about specific Americans in order to target domestic criminal behavior. And they're allowed to do so even though this private information was collected without warrants. So naturally reducing the amount of communications the NSA is collecting will reduce the potential for backdoor, warrantless searches.

It won't eliminate the possibility of these backdoor searches, though, and this decision from the NSA might just be temporary until they figure out a way to resolve the problem of incidental collection of unrelated emails. Section 702 of the Foreign Intelligence Surveillance Act, which sets up some of the rules and authorization for this data collection, will sunset this year unless Congress renews it. Privacy and civil rights advocates would like to see reforms to 702 to better protect Americans from unwarranted snooping. This change helps a touch, but there's still going to be a push to try to stop those backdoor searches.

More about Section 702 reforms and federal surveillance issues were discussed in a recent South by Southwest panel moderated by yours truly. Listen in on that lively talk here.

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I wonder what the Trump Admin’s policy position will be on sec 702? On the one hand he is all about giving the military more leeway/money in the fight against terrorism; on the other hand, he felt the sting of the intelligence community.

There are two things which could be done to make warrants much more accountable.

1. Stop the practice of excluding evidence which was not obtained “legally”. It’s just a fig leaf and makes justice look petty and hare-brained when it excludes obvious evidence and doesn’t punish whoever botched obtaining it. The real abuse is using illegal evidence to find legit evidence.

2. Instead, all illegally executed warrants (beyond the scope described, etc) should rebound in like manner on the warrant executor; and all warrants executed by the losing side in a case should rebound on the losing party, regardless of how legal they were.

This is all in addition to only allowing victims (and their guardians / estate) to prosecute harm, and many other changes. None of this will ever happen. But I like to imagine abusive arrests and excessive searches rebounding on the cops with their own humiliating takedowns and having their own houses torn apart in retribution. Or having them pay a buyer’s market price to avoid same.